Administrative Tribunals

Administrative tribunals are specialized governmental agencies established under federal or provincial legislation to implement legislative policy. Appointment to such agencies is usually by order-in-council. Candidates for appointment are ordinarily chosen for their expertise and their experience in the particular sector being regulated by the legislation. Administrative tribunals perform a wide range of functions, including research and recommendation (eg, law reform commissions); rule making and policy development (eg, the Canadian Radio-Television and Telecommunications Commission and provincial securities commissions); grant allocation (eg, the Canada Council and regional development agencies); adjudication (eg, labour relations boards, municipal boards and human rights tribunals); and standard setting (eg, environmental assessment boards, workers' compensation boards and health and safety commissions). In addition to such permanent agencies there are ad hoc administrative tribunals such as arbitrators and inquiry commissions mandated to deal with a specific subject matter.

Nonpartisan Role
Administrative tribunals function at arm's length from government and are expected to exercise their role in a nonpartisan manner. However, the precise relationship between administrative tribunals and government varies. In some circumstances, such as in the municipal, transportation, communications and energy sectors, provision may be made for appeal from tribunal decisions to the cabinet, although this is not common, and even where it exists only resorted to rarely.

The Decision-Making Process
Many administrative tribunals function through a hearing process in order to determine conflicting rights and obligations or to confer entitlements as between competing parties. Wide powers to summon witnesses and records and to take evidence under oath are vested in administrative tribunals either directly in their enabling legislation, or indirectly by Inquiries Acts of general application.

Administrative tribunals engaged in an adjudicative process function in a manner more closely analogous to the courts with the holding of formal hearings. Procedure is less formal than before the courts and the rules of evidence do not apply, although decisions must be based only on cogent evidence. The decisions of administrative tribunals are ordinarily final and not subject to appeal, although a right of appeal may be provided for either to the courts, another administrative tribunal or cabinet.

Even where no right of appeal is provided, it is a principle of the Canadian Constitution that the superior courts have jurisdiction to review the function of any administrative tribunal so as to ensure that it acts within the jurisdiction conferred on it by Parliament or the legislature, and that it has treated the parties before it fairly. In the event an administrative tribunal has failed to do so, a superior court may quash its decision, remit the matter back for redetermination, and in some cases substitute the finding of the court on a matter of law or mixed fact and law for that of the administrative tribunal.

Author THOMAS S. KUTTNER

Suggested Reading
Jones & DeVillars Principles of Administrative Law, 2nd (1994).